The State of the Nations 2008

The State of the Nations 2008

Edited by Alan Trench

imprint-academic.com

2017 digital version converted and published by

Andrews UK Limited

www.andrewsuk.com

Copyright © Alan Trench and contributors, 2008, 2017

The moral rights of the authors have been asserted

No part of any contribution may be reproduced in any form without permission, except for the quotation of brief passages in criticism and discussion.

Imprint Academic

PO Box 200, Exeter EX5 5YX, UK

List of Contributors

John Aldridge was formerly a senior civil servant in the Scottish Office and Scottish Executive, holding various posts including principal finance officer. He is a member of the independent expert panel on finance advising the Commission on Scottish Devolution.

Martin Burch is Professor of Government in the University of Manchester, and co-leader of the English Regions Devolution Monitoring team.

Scott Greer is Assistant Professor in the Department of Health Policy and Management in the School of Public Health at the University of Michigan, and an honorary senior research fellow at the Constitution Unit at University College London.

Alan Harding is Professor of Urban and Regional Governance and Director of the Institute of Political and Economic Governance at the University of Manchester. He is co-leader of the English Regions Devolution Monitoring team.

Holly Jarman is Visiting Assistant Professor in the Department of Political Science at the University at Albany, SUNY.

Peter Jones is a freelance journalist, writing principally for The Scotsman and The Economist. He was leader of the Scotland Devolution Monitoring team between 2005 and 2007.

James Mitchell is Professor of Government at the University of Strathclyde.

Akash Paun is research associate at the Constitution Unit, Department of Political Science, University College London, and writes the Devolution and the Centre Devolution Monitoring Reports.

James Rees is research associate at the Institute for Political and Economic Governance at the University of Manchester, and contributes to the English Regions Devolution Monitoring Reports.

Roger Scully is Professor of Politics at Aberystwyth University, and co-leader of the Wales Devolution Monitoring team.

Alan Trench is research fellow at the Europa Institute in the School of Law at the University of Edinburgh. He is an honorary senior research fellow at the Constitution Unit at University College London, and contributes to both the Scotland and Wales Devolution Monitoring Reports.

Rick Wilford is Professor of Politics at Queen’s University Belfast, and co-leader of the Northern Ireland Devolution Monitoring team.

Robin Wilson is co-leader of the Northern Ireland Devolution Monitoring team, and a Ph.D. student in the School of Politics, International Studies and Philosophy at Queen’s University Belfast. He was formerly director of the think-tank Democratic Dialogue.

Richard Wyn Jones is Professor of Politics at Aberystwyth University, Director of the Institute of Welsh Politics there, and co-leader of the Wales Devolution Monitoring team.

Abbreviations and Acronyms

Foreword, Alan Trench

This volume in The State of the Nations series focuses on the events of 2007. It surveys what happened during the latter part of the second terms of the Scottish Parliament and National Assembly for Wales, from 2005 to the May 2007 elections, the immediate aftermath, and the first months in office of the new governments, covering events up to the spring of 2008. It also considers a number of issues that will be important during the third term of the devolved governments - including policy-making, intergovernmental relations and finance.

This book is produced as part of the ongoing Devolution Monitoring Programme, which results in three sets of reports each year covering devolution in Scotland, Wales, Northern Ireland, the English Regions, and at the centre. The reports are funded by the Economic and Social Research Council, the Ministry of Justice, the Scotland and Wales Offices and the Scottish Government. We are grateful to each of them for their financial support. We are also grateful to all the members of the monitoring teams, who are too numerous to list here, for their hard work in putting the reports. The reports are available on the Constitution Unit’s website, at www.ucl.ac.uk/constitution-unit/research/devolution/devo-monitoring-programme.html. For further information, contact the Unit’s Director, Professor Robert Hazell, at r.hazell@ucl.ac.uk.

This book went to press in the summer of 2008, and therefore could not cover some developments that occurred during the final stages of the editing process. These include the resignation of Wendy Alexander as leader of the Labour MSPs and subsequent Labour leadership election campaign in Scotland, the Glasgow East by-election, the resignation of Rhodri Glyn Thomas as Culture and Heritage Minister in Wales and his replacement by Alun Ffred Jones, the appointment of Gerald Holtham to chair the Assembly Government’s commission on financial matters, and issues about the devolution of policing and criminal justice in Northern Ireland. For details of these, and for general updates about how devolution works, consult the Devolution Monitoring Reports.

For their help in the production of this book, I am grateful to many people. Top of the list are the contributors, for their patience and forbearance as well as their chapters. Close behind them are support staff at the Constitution Unit, including Victoria Spence, the Unit’s office manager, and Shokofeh Hejazi and Daniel Broadbent, interns who helped with the copy-editing at various times. I am also grateful to Sandra Good, Keith Sutherland and Anthony Freeman at Imprint Academic, not least for the startling speed with which they have produced this book. My thanks also go to Robert Hazell, and to my new colleagues at the University of Edinburgh, particularly Charlie Jeffery and Drew Scott.

1. Introduction: The Second Phase of Devolution, Alan Trench

2007: The Year When Chickens Started Coming Home to Roost

This volume of ‘The State of the Nations’ is concerned first and foremost with the events of 2007, what led up to them and their aftermath and implications. Its main focus is with the 2007 devolved elections which resulted in the restoration of a devolved power-sharing government in Northern Ireland and the entry into government of nationalist parties in Scotland and Wales, and what those governments then did in their first months in office. It also discussed a number of issues that are likely to become important during those governments’ terms in office.

This is the first volume in the ‘State of the Nations’ series to have appeared for three years.[1] The principal reason for this is apparent from the chronology below; between 2005 and 2007, relatively little of interest happened. As Peter Jones outlines in chapter 2, in Scotland, the Labour-Liberal Democrat Executive proceeded to govern, but without attracting much public curiosity, support or enthusiasm. While it may have done worthy things, few of these were particularly noteworthy and it got little credit for what it did do. In Wales, as Richard Wyn Jones and Roger Scully show in chapter 3, a process of complicated if crab-like constitution-making continued, largely away from the gaze of the media, the general public and even many politicians in Cardiff Bay. Labour had to grapple with the problems of governing with only a minority in the Assembly after May 2005 (forcing it into accommodations with the opposition parties and Plaid Cymru in particular over the budget), and with the continuing divisions within the party about devolution. In Northern Ireland, there were long-running attempts to secure disarmament by the IRA and to persuade the long-standing antagonists of Sinn Fein and the Democratic Unionists to share power, so that devolution could be restored, which Rick Wilford and Robin Wilson chart in chapter 4. In 2007, these finally bore fruit.

From London’s point of view, the travails in Northern Ireland were an ongoing source of difficulty. There were also inter-departmental debates and conflicting tendencies in making policy on the English regions (discussed by Martin Burch, Alan Harding and James Rees in chapter 5), which continued to trouble various departments that failed to co-ordinate their policies in any sort of coherent way. But devolution was ‘working well’ in Scotland and Wales - meaning that in the later years of the Blair premiership it did not trouble the centre of government in any but the most technical of respects. This in turn meant that intergovernmental relations had become even more ad hoc, informal and unsystematic, that the Barnett formula remained unchallenged (if often discussed) as the basis of allocating finance, and that Westminster and Whitehall continued to confuse devolved and non-devolved matters but goodwill between the various institutions (underpinned by Labour dominance of government) meant that this never provoked open rows or disputes. The centre simply could, and did, disengage from most aspects of government relating to managing devolution. With hindsight, this seems like astounding complacency on the part of both the UK Government and the Labour Party - complacency which led to what Labour experienced as the cataclysm of the 2007 elections.

Figure 1.1: Chronology of Major Developments in Devolution, June 2005 - March 2008

The 2007 elections are discussed at length elsewhere in the book, and particularly in chapters 2, 3 and 4. As is well known, in Scotland Labour ended up with 46 seats out of 129 in the Scottish Parliament and the SNP with 47; Labour accepted it had ‘lost’ and allowed the SNP to form a minority government. Yet, as James Mitchell argues in chapter 10, Labour has struggled both to accept that it indeed genuinely ‘lost’, or to understand the ways in which and extent to which the SNP has changed over the last decade. (If Scottish Labour has failed to grasp that, the problem is all the more pronounced in London.) In Wales, Labour did badly enough to win only 26 seats out of 60 in the National Assembly and Plaid Cymru well enough to win three extra seats and so to hold 15. There followed a protracted period of inter-party negotiations to form a stable government, which resulted in the formation of Labour-Plaid coalition after extensive preparation for a ‘Rainbow coalition’ of Plaid, the Conservatives and the Lib Dems. As Wyn Jones and Scully show, this process marked a serious process of strategic thought and re-appraisal by the political parties in Wales, a process from which Plaid and the Conservatives emerged with their credibility enhanced and Labour and the Lib Dems did not, mainly because of the way they exposed the depth of their internal divisions and differing forms of disorganisation.[2] Coping with the significant political differences that now exist across the UK will be one of the major issues for the next few years.

The consequence of 2007 was that a number of convenient fudges and efforts to avoid hard issues that had worked effectively since 1999 ceased to work. The smooth progress of devolution (at least from London’s perspective) started to look more like luck than good judgement - which means that broader issues become important too. This book considers four such issues: finance and its allocation (by John Aldridge in chapter 6); policy-making and the extent to which emergent ‘policy styles’ in each part of Britain are likely to prove durable, despite party-political change (by Scott Greer and Holly Jarman in chapter 7); the role of MPs from Scotland and Wales at Westminster, and their failure to carve out a clear role for themselves after devolution (by Akash Paun in chapter 8); and intergovernmental relations, and the differences between the UK’s system and that in federal states (by Alan Trench in chapter 9). As a result, it aims both to record what happened between mid-2005 and early 2008, and to identify areas in which developments over the next few years will be particularly important.

Devolution, the Second Phase

Although it is still early to judge, we can now start to see what the main feature of the second phase of devolution are likely to be. These differ substantially from phase 1 - and not just in obvious ways, such as the absence now of the broad political consensus and goodwill that hitherto derived from Labour dominance of so many governments.

1. Nationalist Parties Face the Challenges of Government

For both the SNP and Plaid Cymru, entering government office is a huge opportunity, but one that brings with it significant challenges. One is obvious: that of proving that they are competent parties of government, so that supporting them at the ballot box in future elections is more than just a protest vote, whether or not they succeed in making themselves natural parties of government. Both parties need to demonstrate both political and administrative competence in office, and to show that their presence in government makes a tangible difference. Adjusting to such demands is a necessary part of becoming parties of government not just of protest.

That adjustment means, amongst other things, developing a different approach to policy. Policy would appear to have been something of a weak spot for both parties up to now. In each case, the development of policy has hitherto largely been a matter of working out what activists wanted or would attract support from the wider electorate, rather than what was practicable. Entry into government means that policy turns from being a matter of ideology or campaigning into something that involves considerations of consequences and practicalities as well. If a party repeatedly makes policy promises that it cannot deliver, it is unlikely to convince voters that it is a real alternative. The problem both parties face is that they have relatively little to do with established networks of policy development and advice - they may have contacts with some individual outside experts as well as their in-house staff, but their links with think-tanks, the academic community and professional bodies have so far been comparatively weak. How successfully they deal with this may translate into the decisions voters make when they next to the ballot box.

2. The Importance of Party Structures, and the Problems they Create for the Britain-Wide Parties

The three Britain-wide (and unionist) parties - Labour, Conservative and Liberal Democrat - also face serious challenges in this new environment, with which they are trying to grapple. Their dilemma is about how to maintain party unity and a consistent policy platform and image across the whole party, while also allowing their Scottish and Welsh branches (or sections, or whatever they are called) sufficient room for manoeuvre. This is a considerable challenge, much more so than was appreciated before devolution, for two reasons. First, the pressures in the Scottish and Welsh political arenas are quite different to those at UK level - essentially because Labour can be outflanked to its left in Scotland and Wales (by nationalist parties, and also by more left-wing parties and candidates such as ‘Labour Forward’ in Wales) in a way that does not happen in Westminster elections. Second, the ‘national’ character of those arenas - the fact that Scottish politics is about Scottish issues and interests, and similarly in Wales - has a profound effect on the nature of political debate and competition. In a Scottish or Welsh arena, when the issues can be defined primarily in Scottish or Welsh terms, the debate is framed in terms that structurally advantage the nationalist parties. When it comes to arguing about who can best stand up for Scotland or Wales, a party that is only concerned with Scotland or Wales has a huge advantage over ones which are trying to balance those concerns with British or UK ones and which have to ensure that they give out a consistent message across the UK.

So far, the Conservatives have coped with this challenge best. This is partly because the bulk of their electoral strength is in England (as are most of their Westminster seats), and Scotland and Wales are electorally largely peripheral for them in Westminster elections. Consequently, the ways they have established themselves in the Scottish Parliament and National Assembly (described in chapters 2 and 3) have helped the party in Westminster campaigns by giving it a higher profile, a more active role, and perhaps a greater degree of legitimacy. If the price of that has been a degree of internal diversity, it has been well worth while. Nonetheless, there are persistent anti-devolution grumblings, particularly from the present Welsh Tory MPs and also, it appears, from the party’s grassroots. The Liberal Democrats, with a federal constitution and aspiration for a federal Britain, have also responded with relative ease to this challenge, though the reluctance of the party in Scotland or Wales to enter office after the 2007 elections (and the divisions and disorganisation that revealed particularly in Wales) will have done it few favours.

The problems are most acute for Labour, which is the only potential party of government to be unionist by electoral interest as well as ideology. Without winning significant numbers of seats from Scotland and Wales, Labour cannot hope to form a government at Westminster (which remains its main goal). Labour appears simply to have counted on the strength of traditional ties and support in both Scotland and Wales, despite many signs that these have been eroding over recent years. (In Scotland, this has been fuelled by the introduction of proportional representation in local authority elections, which has already greatly weakened its position in local government. Loss of control of local authorities will have other consequences, both for maintaining a coherent organisation at local level for Westminster and Holyrood elections, and perhaps for the ability to deliver rewards to Labour supporters through council policies.) The 2007 elections signal a considerable weakening of Labour in both Scotland and Wales - something that has greatly shocked both parties, almost at an existential level. Labour will have to work out what it stands for as a unionist part of the centre-left in Scotland and Wales, and what it has to offer there that is distinctive, if it is to hope to be able to re-establish a powerful position. It will also have to translate that into organisational terms. One likely outcome is the acceptance that Labour cannot function as a monolithic organisation, but needs to become something looser which may have different policies and campaigning strategies in different parts of Britain. This would imply considerable policy and organisational autonomy for the Scottish and Welsh parties, if not a federal arrangement internally. Of senior Labour figures, only Henry McLeish has appeared willing to contemplate such a move so far.

How Labour resolves this remains to be seen - but it will be a major issue for the coming few years, and the solution will have vital ramifications not just for the UK’s territorial politics but also for the UK party system more generally, and perhaps even for whether the UK survives as a single state.

3. The Black Hole of England

England remains, of course, largely outside the devolution arrangements. Such attempts as there have been to find answers - whether through elected regional government, reform of institutions at the centre to address ‘English’ matters more directly, or enhancing the role of local government - have so far had little impact. These problems are starting to become a focus of political and constitutional debate, with a large number of private seminars and think-tank discussions about England that never quite manage to identify what ‘the English question’ is let alone how to answer it. (The fact that these events are dominated by people from and mainly concerned with life in southern England does not help intellectual clarity either.)

Broadly speaking, the debate seems concerned with two broad sets of issues. One set relates to the Westminster agenda, and particularly the anomaly of the ‘West Lothian question’ - the ability of MPs for constituencies in Scotland or Wales to vote on matters like health or education for England, but not for Scotland. This has led to some controversial policies including deferred variable fees for universities and foundation hospitals being passed in England by the votes of Scottish and Welsh MPs. In chapter 8 Akash Paun shows how unclear the role of MPs from Scotland and even Wales is after devolution, and how they have failed to carve out clear roles for themselves. He suggests that these MPs who lack an electoral interest in such matters are much more subservient to party discipline than English MPs, who have to balance party and constituency interests which may conflict. This has led to debates about limiting voting on purely English matters to English MPs, favoured in various forms particularly by the Conservatives (who have little electoral interest in Scotland or Wales for Westminster elections, thanks to the first past the post system), including proposals from Lord (Kenneth) Baker and Sir Malcolm Rifkind and further consideration by the party’s ‘Democracy Task Force’ chaired by Kenneth Clarke MP.[3] The administrative obstacles to be overcome to achieve such changes remain formidable (and probably under-rated by the Conservatives; something near a revolution in the preparation and framing of legislation would be needed). It also remains hard to see the circumstances in which any of this might actually materialise; the point at which the Conservatives will be able to deliver such a reform will be when they have a sufficiently strong Commons (and very largely English) majority that it will not be needed.

The other approach has been to seek to strengthen local or regional government (or both). ‘Localisation’ has been favoured by a range of groups, including the constitutional reform campaign group Unlock Democracy (which incorporates Charter 88 and the New Politics Network), and the newspaper columnist Sir Simon Jenkins. Rhetorically at least it is also supported by the Conservatives as well as parts of UK central government. Regional government has narrower political appeal, having little traction outside Labour Party circles. However, as Martin Burch, Alan Harding and James Rees show in chapter 5, the ‘regionalisation’ agenda continues to develop for administrative reasons, although in a disjointed and rather incoherent way with no clear objectives and action largely determined by the various responsibilities and differing goals of Whitehall departments.

What may underpin the relative torpor of this debate is the general lack of public interest in it. Organisations like the Campaign for an English Parliament and parties like the English Democrats may feel strongly about the failure to recognise distinctive English concerns, but there is little evidence as yet that the wider public shares their concern. Even opinion polling only tends to show a reaction against the status quo when respondees are prompted. The issues simply appear to be of low public salience generally, and excite those engaged in politics more than the wider public.

4. More Contentious Intergovernmental Relations, and a Slow and Grudging Response from the UK Government

It is scarcely news that the lack of political consensus between governments, and the emergence onto the intergovernmental agenda of a number of difficult fundamental issues, have led to more strained intergovernmental relations. This has, if anything, been more manifest on the level of day-to-day politics. There are a number of examples, including the early row (in June 2007) between the Scottish Executive (as it still was) and the UK Government over a ‘memorandum of understanding’ with Libya about which the Scottish Executive had not consulted.[4] Other examples have included an argument about gun-control powers between Scotland and UK following the death of a child by a pellet fired from an air rifle, the obstruction by the Scottish Government of the building of new nuclear power stations in Scotland (although this will be pursued elsewhere in Britain), disagreements about both the merits of replacing council tax in Scotland with a local income tax and the consequences for council tax benefit if that happens, or a row between Wales and UK about health policies in March 2008. There have even been a few issues from Northern Ireland, usually involving DUP ministers. None of these are areas where intergovernmental disagreement should come as a surprise; the novelty is that such disagreements now enter the public domain, while before May 2007 they were generally kept behind closed doors.[5]

In fact, what is surprising is how few and how mild such disputes have been, not how many or how acrimonious. Ministers as well as officials from all administrations have been keen to emphasise the consensus between them and their desire to carry on with day-to-day business. Thus the junior UK Government minister responsible for relations with Scotland wrote in January 2008

The truth is that the business of government is built on daily, weekly, monthly co-operation, consultation and joint working ... The people of Scotland have given ministers north and south of the border the responsibility of working to make Scotland a better place, and they do not want partisan wrangling to get in the way of this task.[6]

Indeed, Scottish Executive/Government officials were instructed early on in the SNP’s tenure to continue to be open, frank and helpful to their counterparts at Westminster, not to create difficulties unless there was good reason. At the same time, the SNP sought to make greater use of formal intergovernmental mechanisms (notably the Joint Ministerial Committee) and to abolish the post of Secretary of State for Scotland. This is perfectly comprehensible in the light of the SNP’s desire to ensure government continues to work well, as part of its plan to establish itself as an effective party of government, but it clearly came as a surprise to many outsiders, particularly in the media. In chapter 10, James Mitchell emphasises how much the lead for this has come from Scottish not UK ministers. But against this must be put the careful use of intergovernmental issues by the Scottish Government. The row over the Libyan memorandum of understanding sent an early signal that failure to play by the rules would cause considerable difficulty and embarrassment for the UK Government (rather to the annoyance of many officials in Whitehall). Nor has the UK level appreciated that, from a Scottish point of view, day-to-day policy issues are also linked to the constitutional agenda, and vice versa. The White Paper Choosing Scotland’s Future clearly set out an agenda by which failures to take Scottish concerns on a wide range of matters that are presently reserved (set out in chapter 2 of the White Paper) could be used to make a case for devolution of those functions if not full independence.[7] Similarly, the sharp comments made by Alex Salmond (notably not by John Swinney, the Finance Secretary in Edinburgh) after the tight settlement for the Scottish Parliament in the Comprehensive Spending Review were intended to indicate the political importance of the issue. And constitutional restraints on what a devolved government or legislature can do can in fact be used to deflect blame for failure to deliver on policy promises. The UK Government has yet to realise the political astuteness and subtlety of the SNP’s intergovernmental agenda, or its potential breadth by linking day-to-day matters to constitutional ones.

The UK has also, it seems, yet to appreciate the sheer skill with which SNP ministers conduct themselves in intergovernmental relations. They play the cards they are dealt extremely well. To understand how well they play the cards it is necessary to understand what the cards are, and that involves a considerable amount of technical detail. One example is the policy on nuclear power stations, where the UK Government accepted in January 2008 that no new nuclear power stations would be built in Scotland even though its policy was to re-establish nuclear power as an element of the UK’s overall electricity supply.[8] Devolved powers in this area are limited, and relate to planning functions as nuclear power is a reserved matter. While the UK Government could have overcome Scottish objections, doing so would have involved considerable delay and political pain, would have played into the SNP’s hands politically (as opposition to nuclear power is a long-standing SNP policy and is popular in Scotland), and would probably not have produced any more nuclear power stations, because these will need to be built by commercial companies which may well decide that the political risk is excessive. The UK’s concession was an understandable practical one, but was not rooted in constitutional factors.

This Scottish skill and deftness in playing what is, in essence, a strong hand politically but often a weak one constitutionally has been matched by tactical maladroitness and gracelessness from the UK Government. The discourtesy of Tony Blair’s failure even to acknowledge Alex Salmond’s election was remarkable (as James Mitchell discusses). The UK Government has persistently refused to use the term ‘Scottish Government’ following the change of name in September 2007 (and hypocritically, since it embraced the term ‘Welsh Assembly Government’ when that was adopted in 2003 for something that was not even a distinct legal institution). Although Alex Salmond asked the UK Prime Minister (still Tony Blair) to re-convene the plenary Joint Ministerial Committee, on taking office, and put this in writing in August 2007, Blair and Brown failed to do so or even respond to Salmond’s request, which was repeated several times in public. While the British-Irish Council met in June 2007, this was largely symbolic and designed to reassure the Northern Ireland unionist parties ahead of a meeting of the North-South Ministerial Conference the following day. When the re-establishment of the JMC was eventually announced in March 2008, no immediate date was set for its first meeting, and it was to be chaired by the new Secretary of State for Justice, Jack Straw, not the UK Prime Minister.[9] Similarly, while administrative arrangements in Whitehall were beefed up somewhat, this took some time to happen and resulted in the appointment of fewer than half a dozen new officials (two of them senior ones), and very limited organisational changes. Although capacity at the centre of government to develop policy and co-ordinate it across government has been boosted (a cabinet committee focussing on devolution and territorial issues, and officials with a remit to improve policy co-ordination), it remains limited. And the partisan engagement of the Scotland Office in constitutional debates has undermined its ability to engage effectively with the Scottish Government as an ‘honest broker’ on day-to-day issues, however much its minister of state may protest otherwise.

It is inevitable that there will be minor spats and disagreements between governments (like the Wales health issue), and more serious far-reaching disagreements as well. The question is how those are managed. The UK has become relatively